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Cumming v. Camara

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


October 15, 2009

ALEX CUMMING, PLAINTIFF-APPELLANT,
v.
SANSOUSSY CAMARA, ET AL., DEFENDANTS-RESPONDENTS.

Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), entered September 15, 2008, upon a jury verdict in defendants' favor, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Friedman, Moskowitz, Renwick, DeGrasse, JJ.

113381/06

Plaintiff was struck by a taxi, owned by defendant Dady and driven by defendant Camara, at 3:45 on a September morning in 2006, as he was crossing West End Avenue outside the crosswalk at West 76th Street in Manhattan. Plaintiff testified at trial that he was drunk at the time of the accident, saw the taxi in the distance as he started to cross the street, and was aware that the taxi had a green light in its favor. Plaintiff stated that he was wearing dark pants and shoes and carrying a dark bag. He challenges the verdict on the grounds, inter alia, that the court gave an erroneous charge concerning the failure to yield the right of way, and that it was against the weight of the evidence or was not supported by legally sufficient evidence.

Although the court improperly charged the jury on pedestrians crossing a roadway, under a provision of the Vehicle and Traffic Law that was superseded by the Rules of the City of New York (34 RCNY 4-04) pursuant to § 1642(a)(10) and (11) of that law, the error was harmless because it did not bear upon an issue reached by the jury (Gilbert v Luvin, 286 AD2d 600 [2001]). The improper charge related exclusively to plaintiff's duty of care in entering upon the roadway. The verdict was based on a finding that the driver was not negligent. Therefore, the jury never reached the question of plaintiff's negligence.

Viewing the evidence in the light most favorable to defendant as we must, the verdict was based on a fair interpretation of the evidence (see Mazariegos v New York City Tr. Auth., 230 AD2d 608, 609-610 [1996]). Moreover, there were a valid line of reasoning and permissible inferences that could possibly lead a rational person to the conclusion reached by the jury on the basis of the evidence presented at trial (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]).

We have reviewed plaintiff's other claims and find them without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091015

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